Notable Rulings from Alito

October 31, 200512:00 AM ET

For the past 15 years, Samuel Alito has been a consistent conservative jurist on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, a court with a reputation for being among the nation's most liberal.

Alito, 55, brings a hefty legal resume that belies his age. He has served on the federal appeals court since 1990, when President George H.W. Bush nominated him to the bench.

Before that, Alito was U.S. attorney for the District of New Jersey from 1987 to 1990, where his first assistant was a lawyer by the name of Michael Chertoff, now the Homeland Security secretary.

A look at some of Alito's rulings on key issues likely to come up in Senate confirmation hearings:

On Abortion:

Planned Parenthood v. Casey, 1991

Alito had the lone dissent in the 1991 case of Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

The U.S. Supreme Court in 1992, in a 6-3 ruling, struck down the spousal notification requirement, but Chief Justice William Rehnquist quoted from Alito's opinion in his dissent.

Opinion Excerpt: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion."

In 2000, Alito joined the majority that found a New Jersey law banning late-term abortions unconstitutional. In his concurring opinion, Alito said the Supreme Court required such a ban to include an exception if the mother's health was endangered.

Opinion Excerpt: "I do not join Judge Barry's opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court's decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.... The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother."

The 3rd Circuit ruled 3-0 that Muslim police officers in the city can keep their beards. Previously, the police had made exemptions in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons.

Opinion Excerpt: "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not."

In 1999, Alito was part of a majority ruling of the 3rd U.S. Circuit Court that freed Jersey City, N.J., from an earlier court ruling that had blocked the city from erecting a holiday display at City Hall. The court held that the display did not violate the establishment clause of the First Amendment — the clause interpreted as a call for the separation of church and state — because the city had modified its original display of a creche and a menorah to include a Frosty the Snowman, Santa Claus, red sleigh and a banner hailing the importance of diversity.

Much of the argument in this case came down to the relative prominence of the secular symbols in the display as compared to the religious symbols.

Opinion Excerpt: "With the possible exception of this factor, however, we see no reasonable basis for distinguishing the modified Jersey City display from the display upheld in Lynch. The plaintiffs and our dissenting colleague suggest that the cases can be distinguished on the ground that in the modified Jersey City display 'Santa Claus and Frosty the Snowman clearly do not constitute separate focal points or centers of attention coequal with the Menorah and the Nativity Scene,' Appellees' Br. at 14, but we see no basis for this distinction. Appendices A and B to this opinion, which depict the modified displays on both sides of City Hall in Jersey City, speak for themselves. In the modified display on the right, the sleigh is just as much a focal point as the figures in the nativity scene. And in the modified display on the left, the tree is just as much a focal point as the menorah."

In July 2004, the 3rd Circuit Court ruled that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages.

Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh.

Opinion Excerpt: "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment."

In 1996, Alito filed a partial dissent in the sex discrimination case of Sheridan v. Dupont. Barbara Sheridan, a former employee of the Hotel du Pont, filed an action under the Civil Rights Act of 1964 claiming that she had not been promoted because of her gender. She also claimed in her filing that the hotel had retaliated against her when she complained about sex discrimination.

Alito's primary disagreement with the majority in this case was over the issue of summary judgment. This is the point in a case, pre-trial, when the defense moves to have the case dismissed by a judge for lack of evidence. The majority held that the plaintiff's testimony in such cases was always enough to overcome the summary judgment motion and move the case to trial. Alito disagreed, saying that some employment discrimination cases required a higher standard of proof from the person claiming discrimination.

Opinion Excerpt: "If the majority had merely said that, under the circumstances described above, a defense motion for summary judgment or judgment as a matter of law must generally be denied, I would agree. When a plaintiff makes out a prima facie case and there is sufficient evidence in the record to permit a rational trier of fact to find that the employer's explanation is untrue, a defense motion for summary judgment or judgment as a matter of law should usually be denied. But not always, as the majority contends.

In my view, the correct test is the following: a defense motion for summary judgment or judgment as a matter of law should be granted when the evidence in the record could not persuade a rational trier of fact that intentional discrimination on the ground alleged by the plaintiff was a determinative cause of the challenged employment action.

This does not mean that a plaintiff, in order to reach the trier of fact, must always prove 'pretext plus,' i.e., that the plaintiff must always produce some evidence in addition to what is necessary to establish a prima facie case and to show that the employer's explanation is pretextual. On the contrary, in most cases, such additional proof is not needed. But I disagree with the majority that proof of the elements of the prima facie case and proof of pretext are always enough."